Case Note & Summary
The litigation originated in 1937 when one Dhirendra Nath Banerjee filed a suit for partition and allotment of his 3 annas 3 pies share out of 16 annas in 32 villages and a 4 annas share in another village in Hazaribagh district, Bihar. A preliminary decree for partition was passed in 1939; appeals against it were dismissed in 1943. In 1945, the present appellant (since deceased with heir substituted) purchased Banerjee's share and was added as co-plaintiff in 1947. In 1950, the Bihar Land Reforms Act came into force, and by notification dated 8-9-1952, all the villages vested in the State of Bihar. The State was added as a party in 1952. A commissioner appointed to effect division submitted a report in March 1952. In May 1952, the parties entered into a compromise, but the State was not a party. The trial court passed a final decree in terms of the compromise. On appeal, the Patna High Court set aside the final decree, holding that the partition suit had become infructuous because the properties, including mines, had vested in the State and the original titles of proprietors had vanished. The High Court also rejected a civil revision petition against the trial court's order disallowing amendment of the plaint to include schedules of mines and lands. The core legal issues were whether the partition suit became wholly infructuous upon vesting; whether the benefit of section 9 of the Bihar Land Reforms Act, 1950 (deemed lease of mines) was available to co-sharers jointly interested before vesting or only to the intermediary directly working mines; and whether the appellant could obtain a final decree in respect of mines in the same suit or had to file a separate suit. The appellant contended that working mines and bakhast and zirat lands were not taken over by the State and the suit should succeed at least for those properties. The first respondent and State of Bihar conceded, following the Full Bench decisions in Ramrudhar Singh v. Dileshwar Singh and the Supreme Court decision in Bhubaneshwar v. Sidheswar, that the appellant was entitled to his share in bakhast and zirat lands. The State, however, argued that this was subject to ceiling laws and that the area of any mining lease must be determined under section 12 in light of the Mines and Minerals (Regulation and Development) Act, 1957. The Supreme Court modified the High Court judgment. It held that the High Court erred in treating the suit as wholly infructuous. Following Bhubaneshwar v. Sidheswar, the Court ruled that co-sharers had constructive possession and the deeming provision of section 6 enured for benefit of all co-sharers; hence the appellant retained rights to bakhast and zirat lands. Accordingly, a final decree in favour of the appellant was directed for bakhast and zirat lands subject to laws regarding ceiling on land in force in Bihar. As to mines, the Court held that the High Court also erred in restricting the benefit of section 9 to the intermediary directly working mines; a co-sharer jointly interested before vesting could claim a share in the deemed lease. However, the Court found it impossible to give effect to the consent decree for mines in the present proceedings because the record lacked material on which mines were in operation, who among the co-sharers were working them, and to what extent. Moreover, the terms and conditions of the lease had to be agreed with the State or settled by the Mines Tribunal, and the area to be covered by the lease had to be decided under section 12. Where subsisting leases existed under section 10, the appellant would have no right in such mines. Due to these complexities, the Court directed that the appellant must work out remedies in respect of mines by a separate suit. The appeal was allowed in part and the High Court judgment modified accordingly.
Headnote
A) Bihar Land Reforms Act, 1950 - Vesting of Estates - Effect on Pending Partition Suit - Bihar Land Reforms Act, 1950, Sections 4, 6, 9, 10, 12 - Partition suit did not become wholly infructuous upon vesting of estates; co-sharers retained rights in bakhast and zirat lands as new rights under the Act. High Court erred in setting aside final decree entirely; final decree could be passed for such lands subject to ceiling laws. Held, appellant entitled to share in bakhast and zirat lands (Paras Not mentioned). B) Bihar Land Reforms Act, 1950 - Mining Leases - Entitlement of Co-sharers - Bihar Land Reforms Act, 1950, Section 9 - High Court erred in restricting benefit of section 9 to intermediary directly working mines; co-sharers jointly interested before vesting are entitled to share in deemed mining lease by constructive possession. Held, appellant as co-sharer entitled to share in working mines but must obtain lease from State Government and terms to be settled under section 12 (Paras Not mentioned). C) Bihar Land Reforms Act, 1950 - Subsisting Leases and Area Determination - Bihar Land Reforms Act, 1950, Sections 10 and 12; Mines and Minerals (Regulation and Development) Act, 1957 - Where subsisting lease exists, mines comprised in that lease deemed leased to holder of subsisting lease, and co-sharer has no right; area to be covered by mining lease determined under section 12 in light of MMDR Act. Held, due to absence of material on record and complexity, appellant must work out mining remedies in separate suit (Paras Not mentioned).
Issue of Consideration
Whether a partition suit became wholly infructuous upon vesting of estates under the Bihar Land Reforms Act, 1950; whether the benefit of section 9 of the Act (deemed mining lease) was available to co-sharers jointly interested before vesting or only to the intermediary directly working mines; and whether the appellant could obtain a final decree for mines in the same suit or had to file a separate suit.
Final Decision
Appeal partly allowed; High Court judgment modified to direct final decree in favour of appellant for bakhast and zirat lands subject to ceiling laws; appellant to work out mining remedies by separate suit; no final decree for mines in present proceedings.
Law Points
- co-sharer constructive possession
- section 9 benefit extends to co-sharers
- final decree for bakhast and zirat lands subject to ceiling
- mining rights require separate suit
- subsisting lease under section 10 excludes co-sharer
- area of mining lease determined under section 12
- Bihar Land Reforms Act vesting does not wholly abate partition suit
